HQ 958749: Protest 5501-95-100272; artificial flowers; HRLs 955578, 954226; Chapter 48 Note 1(f)

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 958749

May 3, 1996

CLA-2 RR:TC:MM 958749 MMC

CATEGORY: Classification

TARIFF NO.:6702.90.65

Port Director
U.S. Customs Service
PO Box 619050
DFW Airport, TX 75261

RE:  Protest 5501-95-100272; artificial flowers; HRLs 955578,
     954226; Chapter 48 Note 1(f)

Dear Port Director:

     The following is our response to Protest 5501-95-100272
concerning your actions in classifying and assessing duty on
artifical flowers, under the Harmonized Tariff Schedule of the
United States (HTSUS). 

FACTS:

     The artificial flower is referred to as a " shinny magnolia"
style number RL 40111/F.
Customs laboratory report 5-96-10175-001 dated November 9, 1995,
indicates that the flower is composed of paper coated with latex
rubber and plastic petals are composed of 2.89 millimeters (mm)
of paper, 2.92mm of rubber and 1.17mm of plastic.
     
      Protestant entered the artifical flowers under subheading
6702.90.35, HTSUS.  The entries were liquidated on April 7, 1995,
under subheading 6702.90.65, HTSUS.   A protest was timely filed
on June 12, 1995.  The subheadings under consideration are as
follows:

     6702.10.20     Artificial flowers, foliage and fruit and
                    parts thereof; articles made of artificial
                    flowers, foliage or fruit: [o]f plastics:
                    [a]ssembled by binding with flexible
                    materials such as wire, paper, textile
                    materials, or foil, or by gluing or by
                    similar
                    methods.........................................................................8.4%

     6702.90.35     Artificial flowers, foliage and fruit and
                    parts thereof; articles made of artificial
                    flowers, foliage or fruit: of other
                    materials: other: of man-made
                    fibers..................................................................................................9%

     6702.90.65     Artificial flowers, foliage and fruit and
                    parts thereof; articles made of artificial
                    flowers, foliage or fruit: of other
                    materials: other: other.........17%

ISSUE: 

      Under which provision are the artificial flowers
classifiable?

LAW AND ANALYSIS:

     The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's).  GRI 1,
HTSUS, states, in pertinent part, that for legal purposes,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes.   GRI 6
provides that for legal purposes, the classification of goods in
the subheadings of a heading shall be determined according to the
terms of those subheadings and any related subheading notes and,
mutatis mutandis, to the above rules, on the understanding that
only subheadings at the same level are comparable.  For the
purposes of this rule, the relative section, chapter and
subchapter notes also apply, unless the context otherwise
requires. 

     Heading 6702, HTSUS, provides for artificial flowers,
foliage and fruit and parts thereof; articles made of artificial
flowers, foliage or fruit.  The articles at issue here are
classifiable within this heading.  However, as they are comprised
of several materials (plastic, rubber and paper), there in no one
subheading within heading 6702, HTSUS, that specifically
describes them and therefore, classification cannot be pursuant
to GRI 1.  We thus look to GRI 2(b), which states in pertinent
part that:

     The classification of goods consisting of more than one
material or substance shall   be according to the principles of
rule 3.

As the articles consist of more than one material or substance
and are prima facie classifiable within two or more subheadings
within heading 6702, HTSUS, GRI 3 is applicable.    

     GRI  3 states, in pertinent part, the following:

          When by application of rule 2(b) or for any other
          reason, goods are, prima      facie, classifiable under
          two or more headings, classification shall be effected
          as follows:

          (b)  Mixtures, composite goods consisting of different
               materials or made up of different components, and
               goods put up for retail sale, which cannot be
               classified by reference to 3(a), shall be
               classified as if they consisted of the material or
               component which gives them their essential
               character, insofar as this criterion is
               applicable.

In understanding the language of the HTSUS, the Explanatory Notes
(ENs) of the Harmonized Commodity Description and Coding System
may be utilized.  The ENs, although not dispositive, or legally
binding, provide a commentary on the scope of each heading, and
are generally indicative of the proper interpretation of the
HTSUS.   See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23,
1989).  

     EN VIII to GRI 3(b), pg. 4, provides an interpretation of
the term "essential character" stating that:

     The factor which determines essential character will vary as     between different kinds of goods.  It may for example,
     be determined by the nature of the material or component,
     its bulk, quantity, weight or value, or by the role of a
     constituent material in relation to the use of the goods. 
     
Protestant claims the subject artificial flower obtains its
essential character from the petals.  These in turn obtain their
character from the plastic component.  The plastic provides the
shiny essence and visual focal point of the product.  Therefore,
the product should be classified as "of plastic" under subheading
6702.10.20, HTSUS.  We agree that the flower obtains its
essential character from the petals.  
     
     Customs laboratory analysis indicates that the petals are
composed of paper and are coated with a rubber/plastic resin. 
Chapter 48, HTSUS, provides for paper and paperboard; articles of
paper pulp, of paper or of paperboard.  Note 1(f) to Chapter 48,
HTSUS, states that this chapter does not cover:

     (f)  Paper-reinforced stratified sheeting of plastics, or
     one layer of paper or paperboard coated or covered with a
     layer of plastics, the latter constituting more than half
     the total thickness, or articles of such materials, other
     than wall coverings of heading 4814 (chapter 39).

Accordingly, if  the plastic coating on the petals is more than
half their total thickness, the petals are not considered to be
made of paper and therefore not classifiable under subheading
6702.10.20, HTSUS.  If the plastic coating is less than half the
total thickness of the petals, the petals would be considered
either rubber or paper depending upon which material constitutes
the greatest thickness of the petal.  See, HRL 954226, dated
December 29, 1993, wherein we dealt with the classification of,
inter alia,  one flower petal that was composed of paper (which
in turn was made up of vegetable fibers) that was coated with
plastic.  The lab analyzed this petal and determined that the
plastic measured less than half of the total thickness of the
petal.  Based on Legal Note 1(f) to Chapter 48, HTSUS, the petal 
was considered to be made of paper and was classified in
subheading 6702.90.65, HTSUS.

     The laboratory analysis determined that the subject petals
measured .698mm thick with .117mm of the thickness from plastic,
.292mm from rubber and .289mm from paper.  The plastic coating is
less than half the total thickness of the petal, therefore it is
not classifiable as plastic.  The rubber component comprises the
greatest thickness of all constituent components.  Therefore, it
is our position that the petals should be considered rubber for
classification purposes and are classifiable under subheading
6702.90.65, HTSUS.HOLDING:

     The protest should be DENIED.   The artificial flowers are
classifiable under subheading 6702. 90.65, HTSUS, which provides
for artificial flowers, foliage and fruit and parts thereof;
articles made of artificial flowers, foliage or fruit: of other
materials: other: other, with a column one duty rate of 17% ad
valorem.

     In accordance with section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject:  Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter. 
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision.  Sixty
days from the date of this decision, the Office of Regulations
and Rulings will take steps to make the decision available to
Customs personnel via the Customs Rulings Module in ACS and to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.

                                   Sincerely,



                                   John Durant, Director
                                   Tariff Classification and
Appeals Division